The latest praise for President Obama’s Supreme Court nominee comes from a bipartisan group of former U.S. solicitors general. In a letter to Senate leaders, they said that “we are unified in our belief that Judge Garland is superbly qualified to serve on the Supreme Court if he were confirmed.”
Among those signing the letter was conservative lawyer Paul Clement, often mentioned as a possible Supreme Court nominee in a future Republican administration (if there ever is such a thing).
What Garland hasn’t gotten, of course, is a Senate confirmation hearing, let alone a vote. Senate Majority Leader Mitch McConnell (R-Ky.) is sticking to his absurd insistence that he won’t allow action on the Garland nomination because “the American people” who will be voting in the presidential election deserve a voice in replacing the late Antonin Scalia.
So here’s a suggestion that might break the logjam: Hillary Clinton should say publicly that if she were elected president and Garland hadn’t been confirmed she would resubmit his name.
Some Clinton supporters won’t like this idea: They regard Garland as too centrist and a negative when it comes to diversifying the court. There are hints that Clinton agrees and plans if elected to be bolder with her Supreme Court nominations.
But there are four reasons why Clinton should promise to renominate Garland. She has described the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit as “a nominee with considerable experience on the bench and in public service, a brilliant legal mind, and a long history of bipartisan support and admiration.”
1: Clinton has made it clear that she thinks the Senate’s refusal to act on Garland’s nomination is a breach of constitutional protocol and that Obama was entitled to timely consideration of his choice. Renominating Garland would undo the Senate Republicans’ illegitimate obstruction, righting a wrong and making Obama “whole” in legal parlance.
2: By promising to renominate Garland, Clinton would make it more likely that the Senate would act on the nomination in the lame-duck session, assuming that Clinton won the presidency. McConnell has resisted the idea of lame-duck confirmation, but if the victorious presidential candidate says she will submit the same name in January, why not get it over with so that a new justice could join the court in the second part of its 2016-17 term? McConnell could save face by pointing out that the American people had spoken by electing Clinton.
3: By promising to renominate Garland, Clinton would bolster her assertion that she, and not Sen. Bernie Sanders, is Obama’s true heir. Sanders has said that if he were elected president, he would ask Obama to withdraw Garland’s nomination. One poll suggests that a majority of Democrats would like Clinton to renominate Garland.
4: If she is elected, Clinton will have other opportunities to nominate a less pastel justice. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy will turn 80 in July and Justice Stephen Breyer is 77. It’s highly likely that at least two of those justices will step down during Clinton’s first term. Then Clinton could “go bold” by picking nominees with more eclectic resumes than Garland’s.
Follow Michael McGough on Twitter @MichaelMcGough3